Pareroultja v Burgoyne - [2003] NTSC 28

Pareroultja v Burgoyne [2003] NTSC 28
PARTIES:JOHNNY PAREROULTJA

v
ROBERT BURGOYNE

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction
FILE NO:JA64/02 (20208516)
DELIVERED:  28 March 2003
HEARING DATES:  20 March 2003
JUDGMENT OF:  THOMAS J
CATCHWORDS:

CRIMINAL LAW - judgment and punishment - appeal against sentence - appellant stole food while intoxicated from dwelling house - sentence confirmed - sentence suspended after five months.
Criminal Code 1983 (NT), s 210; Sentencing Act 1996 (NT), s 78(A)6
REPRESENTATION:
Counsel:
Appellant:M O'Reilly
Respondent:  C Roberts
Solicitors:
Appellant:Central Australian Aboriginal Legal Aid Service
Respondent:  Office of the Department of Public Prosecutions
Judgment category classification:        C
Judgment ID Number:  tho200316
Number of pages:  8

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Pareroultja v Burgoyne [2003] NTSC 28
No. JA64/02 (20208516)

BETWEEN:
JOHNNY PAREROULTJA

Appellant
AND:
ROBERT BURGOYNE

Respondent

CORAM: THOMAS J
REASONS FOR JUDGMENT
(Delivered 28 March 2003)

This is an appeal against sentence imposed in the Court of Summary Jurisdiction in Alice Springs on 20 November 2002.
On 19 November 2002, the appellant had entered a plea of guilty to the following two charges:
"On the 31^st day of May 2002
at Alice Springs in the Northern Territory of Australia
1. unlawfully entered a dwelling house, namely, 59 Bloomfield Street, with intent to commit therein a crime, namely, steal:
Contrary to Section 213 of the Criminal Code.
And Further
On the 31^st day of May 2002
at Alice Springs in the Northern Territory of Australia
2.did steal sausages, bread and chicken pasta, valued at $10.00, the property of Melissa Cornwell:
Contrary to Section 210 of the Criminal Code."
The learned stipendiary magistrate sentenced the appellant to eight months imprisonment.
The facts in support of the charge are set out in the transcript of proceedings before the learned stipendiary magistrate (tp 2):
"Approximately 7:30 pm Friday 31 May this year the defendant entered the residence of 59 Bloomfield Street in an attempt to steal. He opened the unlocked front door, walked into [the] kitchen, opened the freezer, grabbed some frozen sausages, went to a place therein near the microwave oven. Just as he did he was interrupted by the occupier and her 6 month old child.
The victim yelled at him, telling him to leave. He replied by saying, 'No, I'm hungry, I want some food'. The victim then told the defendant that she was going to ring the police. He didn't reply. He reopened the freezer, grabbed some frozen bread, frozen chicken pasta from it.
She phoned police for assistance and then she ran outside with her child and waited for police. Whilst she was [waiting] for the police the defendant came outside with the bread and pasta under his arm. She told him that she had rung the police. He then sat down. Police arrived a short time later. He was apprehended. He declined a record of interview.
59 Bloomfield Street was a private dwelling and he had no permission to do what he did. …"
These facts were agreed by the defence as was the appellant's record of prior convictions which was tendered Exhibit P1.
This record indicates the appellant was first convicted in the Nhulunbuy Court of Summary Jurisdiction on 16 October 1990 on five counts of criminal damage, four counts of attempted unlawful use of motor vehicle and stealing. He was sentenced to a total of four months imprisonment.
On 14 February 1991 the appellant was convicted in the Alice Springs Supreme Court of manslaughter and sentenced to four years imprisonment to commence on 1 June 1990. The record indicates this period of imprisonment was suspended from the date of the conviction. On 12 August 1992 he was convicted in the Nhulunbuy Court of Summary Jurisdiction of unlawful entry and stealing. He was dealt with by the imposition of a Community Service Order. His last conviction was in the Hermannsburg Court of Summary Jurisdiction on 10 November 1997 for an offence of aggravated assault. He was sentenced to six months imprisonment suspended on condition he be of good behaviour for 18 months and subject to supervision.
The record of prior convictions notes the appellant's date of birth as 10 March 1973 which would mean he was 29 years of age at the date of the commission of the offences.
During the course of his submission on the plea of guilty in the Court of Summary Jurisdiction, the appellant's then counsel had referred to the appellant's problems with alcohol and that he suffered pain and discomfort because of a serious liver problems. It was submitted that at the time of the offence the appellant was heavily intoxicated and had no recollection of the offence. Counsel for the appellant then submitted to the learned stipendiary magistrate that consideration be given to a short stint in gaol which would help him dry out "and it might help his liver a little bit" (tp 4). His Worship noted that the difficulty with that submission was that gaols aren’t there as a substitute for hospital.
The following morning the learned stipendiary magistrate delivered his reasons for sentence (tp 7):
"… The defendant has pleaded guilty to entering a dwelling with intent to steal and with stealing. The first offence is punishable by a maximum of 10 years imprisonment and the second by a maximum of 7 years imprisonment. The defendant has elected for summary disposal of the matter. So have the prosecution. And I am dealing with it accordingly.
The offence is somewhat bizarre. It appears that the defendant was hungry. He just marched into a dwelling house. He was a complete stranger to it. It was occupied by a lady and her baby. The defendant marked into the kitchen, went to the freezer, got some frozen sausages and put them in the microwave and proceeded to cook them.
He also purloined the other food mentioned in the information, which is some bread and chicken pasta. The lady of the house, equipped only with her baby, screamed at him to get out. He said, 'No, I'm hungry.' She threatened to call the police.
The defendant continued cooking. She did call the police. The defendant sat down and waited for them to arrive. He then went off with the police. He did no harm, with two exceptions. (1) He spoilt $10 worth of food. And secondly, it must have been an extremely frightening experience for the occupier of the house.
The defendant is aged 29. He has 12 prior convictions, these include a conviction for manslaughter. They include two for stealing and one for unlawful entry of a dwelling house. Under mandatory sentencing he would have been facing a minimum of 12 months imprisonment.
His counsel said that he has great problems with alcohol and yesterday was complaining of liver pains.
Invasions of person's houses such as this will not be tolerated by the courts and he will be sentenced to 8 months imprisonment. I don't propose suspending the whole or any part of that."
The grounds of appeal as set out in the Amended Grounds of Appeal are as follows:
"(a)That the said sentence imposed by the learned stipendiary magistrate was in all the circumstances manifestly excessive.
(b)That the learned stipendiary magistrate elevated the seriousness of the offence to a degree not in accordance with the admitted facts.
(c)That the learned stipendiary magistrate failed to consider any factors in mitigation.
(d)That the learned stipendiary magistrate erred in his consideration of the mandatory sentencing regime."
I consider the learned stipendiary magistrate was entitled to find as he did that the consequences of the offenders actions were that he had spoiled food worth $10 and secondly that it must have been an extremely frightening experience for the occupier of the house.
The appellant's actions in entering the house as he did and helping himself to food were extremely brazen and high handed. They are probably explainable because of the appellant's state of intoxication. This does not excuse his actions. The learned stipendiary magistrate was correct to infer that the occupier of the house was put in fear. Obviously she was because she immediately called the police. The occupier of the house, a woman with a young baby was not to know what the appellant was likely to do and whether or not he would become violent. Her privacy and security had been invaded. I agree that the offence combined with the circumstances of the offender warrants a sentence of imprisonment.
I agree with the submission of counsel for the appellant that the learned stipendiary magistrate erred in his reference to the provisions of the repealed mandatory sentencing legislation. This was not a relevant factor in his consideration of the sentencing for this offence. It was an incorrect statement because the appellant's relevant prior convictions pre-dated mandatory sentencing and the minimum term would have been 14 days imprisonment not a "minimum of twelve months imprisonment" (see s 78A(6) of the Sentencing Act (NT) as in force at 1 February 2000, now repealed).
I also agree with the submission made by counsel for the appellant that the reasons for sentence do not indicate the learned stipendiary magistrate considered the factors in mitigation in particular when deciding whether or not the sentence of imprisonment should be suspended either wholly or in part. I agree with the submission that the failure to refer to the mitigating factors and the incorrect and irrelevant reference to the mandatory sentencing legislation has led the learned stipendiary magistrate into error in deciding not to suspend any part of the eight months sentence.
From a reading of the learned stipendiary magistrate's reasons for sentence, he does not refer to a number of the mitigating factors that pertained to the appellant. These were:
·     The appellant's plea of guilty and cooperation with the authorities. There was a strong Crown case nevertheless the appellant was entitled to have some consideration given for the plea of guilty.
·     There was a significant gap of time since the last conviction which was on 10 November 1997. The appellant had complied with the provisions of a good behaviour order imposed on that date.
·     There was a significant gap of time since the last relevant prior conviction which was a conviction for unlawful entry and stealing on 12 August 1992 for which the appellant was dealt with by imposition of a Community Service Order.
·     There were prospects of rehabilitation indicated in the plea: being the fact that the record of prior convictions showed a diminution in offending since the conviction for unlawful entry and stealing on 12 August 1992; the fact that the appellant is in a relationship where he now lives in Hermannsburg. He has lived in Hermannsburg since 1996. He has two young children and is employed on the CDEP program at Hermannsburg.
·     There was no suggestion of violence or threat of violence associated with the offence. When the appellant was told by the occupant of the house that she had called the police, he went outside with the bread and pasta under his arm, sat down and waited for police to arrive.
I would allow the appeal and pursuant to s 177(2) of the Justices Act vary the order appealed from and make the following order.
I confirm the conviction and sentence of eight months imprisonment.
Pursuant to s 40 of the Sentencing Act I would suspend the period of imprisonment after the appellant has served a period of five months upon condition the appellant be of good behaviour for a period of 12 months. This sentence is backdated to 18 November 2002 to take into account time already spent in custody.
Pursuant to s 40(6) of the Sentencing Act I specify a period of twelve months from the date of his release on the suspended sentence during which the appellant is not to commit another offence punishable by imprisonment if the appellant is to avoid being dealt with under s 43 of the Sentencing Act.

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